Retainer agreement set at $32,500 per month

Hemet’s contract city attorney signs legal services agreement

City of Hemet
Eric Vail is the city’s current contract attorney and partner with Burke, Williams and Sorenson, LLP. The city of Hemet unanimously approved the retainer agreement on Nov. 14 for legal services with Burke, Williams and Sorenson, LLP after a request for proposal was made in May this year.

■ Melissa Diaz Hernandez / Editor

The Hemet City council unanimously approved a legal services retainer agreement on Nov. 14 with Burke, Williams and Sorenson, LLP (Burke) – the city’s current contract attorney. In the staff report, Interim City Manager Allen Parker recommended that the city continue to use and enter into a new agreement with Burke.
The City Council in May directed staff to issue a Request for Proposal (RFP) for contract City Attorney services. The fee structure, retainer and training would include cost containment measures identified in the agreement, according to the staff report.
Parker stated in an email to The Valley Chronicle that 13 firms responded to the RFP. The new agreement supersedes Burke’s prior legal services agreements with the city, and the effective date was anticipated to be Nov. 14.

What the agreement covers
“Burke will provide all General Municipal Services as described on Attachment “A” as a fixed price retainer of $32,500 per month, regardless of hours,” states the agreement. “The nominal rate for this work is $205 per hour. However, while the rate may fluctuate up and down each month, the City’s cost remains the same to provide for maximum cost stability.”
Burke will provide all litigation and code enforcement services for $225 per hour.
All special services (except as noted below) will be billed at $225 per hour; labor negotiations, complex transactions, and complex construction issues will be billed at $250 per hour.
Reimbursable Special Services are any legal services provided to or at the request of the city of Hemet, for which the city may obtain reimbursement from a third party (such as the applicant on a developer project), from a state, federal, or local grant or program.
“Client should charge such third parties for these services and obtain reimbursement for attorney’s fees and costs billed on reimbursable service matters. Burke will provide separate matter numbers and separate detailed billings for each reimbursable service matter.” Partners are billed at $285 per hour and associates at $250 per hour.
According to the agreement, the city of Hemet has access to some of the best legal practitioners in the state and will only be assigned with the city’s prior consent and direction. Burke will make available members of its expert team to take the lead on cases and matters. Current rates range from $325 to $450 per hour.
Burke will not provide representation outside of the services in Attachment A of the agreement to the city of Hemet. “No representation of any council members, directors, officers, employees, agents or any other persons or entities affiliated with Client shall be provided unless such representation is expressly included in Attachment “A” to this agreement.”

Services provided per Attachment A:
• Attendance at all regular City Council meetings, and special and emergency City Council meetings as directed by the mayor or city manager.
• Attendance at all regular, special, and emergency Planning Commission meetings, and other meetings of city boards, commissions, and committees, as may periodically be requested by the City Council or city manager.
• Attendance at executive team meetings and one session of office hours per week, provided on either the day of the executive team, City Council, or Planning Commission meeting.
• Review agenda descriptions, staff reports, and other agenda items as requested by the City Council, city manager, or executive team members.
• Review and advice concerning Political Reform Act Conflict of Interest issues, Government Code 1090 issues, and similar public ethics issues, including preparation of requests for advice and opinion letter with the Fair Political Practices Commission (FPPC), and assistance with FPPC inquiries and investigations.
• Review and advice in response to requests for city records under the Public Records Act.
• Advice and guidance on compliance with the Ralph M. Brown Act.
• Risk management support services including a monthly Litigation Status Report, consultation with city’s third-party claims adjustor and department heads on risk management issues, and review of certain claims at the request of city’s third-party claims adjustor, and response to city and insurer audits.
• Routine Public Works issues involving legal advice regarding operational issues, contract matters, stop notices, routine bid issues, and review of form public works contract documents.
• Routine Land Use issues involving advice to planning and engineering staff regarding application of California laws (Planning and Zoning Law, Permit Streamlining Act, Subdivision Map Act, Mitigation Fee Act, CEQA (3) (4) (5) (6) (7) (8) (e) (10) etc.,) to development projects and City initiated planning and zoning actions, assistance with review and application of California Environmental Quality Act, review and interpretation of City ordinances and policies regarding land use matters.
• Advice regarding police standards and practice.
• Appearances before other public entities or governmental agencies on behalf of the city.
• Review of pending legislation.
• Review of JPA agreements and amendments.
• Community Development Block Grant (CDBG), home loan, and other state and federal programs.
• Provide legal advice and opinions on all matters affecting the city, except when prevented from doing so by a conflict of interest.
• Prepare and/or review resolutions and ordinances initiated by the city.
• Prepare or review and certify as to legal form contracts for service and the purchase of goods and equipment, contracts for services, agreements between city and other local governmental agencies, grant acceptance and implementation agreements, and similar agreements.
• Prepare or review and certify as to legal form contracts, agreements, and other documents for the disposition of city property, fee deferral, or waiver agreements, subdivision improvement agreements, and similar routine land use and developer agreements, excluding complex agreements as provided below.
• Participation in Hemet ROCS team, or similar enforcement/compliance team, activities including operation planning sessions, inspections, and similar activities.
• Review and representation of city in Pitchess motions and subpoenas for records from third parties.
• Defense of all civil litigation, writs, and equitable actions initiated against the city of Hemet, any of its Departments, and employee(s), to the extent the city has accepted and authorized the defense of such employee(s), including without limitation, actions for police defense; tort liability; employment matters including wrongful termination; breach of contract; regulatory takings; and inverse condemnation; defense of municipal ordinances; and similar actions.
• Commencement and prosecution of all civil litigation initiated at the direction of the City Council against third parties, whether for breach of contract, injury to person or property, eminent domain, or to otherwise protect or advance the rights, powers, and interests of the city.
• Special Services (1) Personnel/Employment Advice: Personnel investigations, grievances, (2) disciplinary procedures, ADA interactive process, retirement and medical benefit issues, leave issues, drafting and implementing personnel rules and regulations, FLSA, FMLA, ADA and HIPAA issues, and Police Officer and Firefighter Bill of Rights issues.
• Personnel/Employment Advocacy: Skelly hearings, grievance hearings, disciplinary hearings.
• Labor Negotiations: Act as a lead labor negotiator and/or provide legal advice to other designated negotiators when directed by the City Council or city manager.
• Assist with fact finding and impasse procedures and hearings.
Complex Transactions: Prepare and negotiate statutory development agreements, disposition and development agreements, commercial ground leases, density bonus agreements, affordable housing agreements, joint financing agreements, and similar agreements.
• Complex Public Works Issues: Contested bid disputes and challenges, hearings for contractor’s designated as “not responsible,” breach of contract claims, assistance with contract management issues and disputes.
Drafting specialized public works contracts or special conditions.
Prevailing wages disputes and complex land use environmental matters.

City manager to act as gatekeeper
The agreement also states, “The city manager, and his/her designee, the city attorney, and Burke’s primary code enforcement attorney will confer and develop protocols to determine when and under what circumstances the city will utilize legal assistance in the code enforcement process, according to the contract.
“The city manager will function as a “gatekeeper” of specialty (non-retainer work) work flowing from city departments to Burke.”

Hour banks for certain specialty services
The representative attorney from Burke will work with the city manager and department heads to determine an appropriate “bank” of attorney hours, under the direction and supervision of the city manager, for certain specialty services frequently utilized.
In concept, each department’s “bank” will have a specified number of annual attorney hours that may be utilized as the city manager and appropriate department heads see fit.
In addition, “When the bank is exceeded, the city attorney and city manager will consult with the City Council as to when additional attorney hours will be allocated or tasks will be deferred or addressed in another manner. Burke suggests banks for the following services: Pitchess motions and subpoenas for criminal cases or issued by the District Attorney, Public Defender or other state or federal governmental entity. General Employment and Personnel advisory and transactional work.”
This does not include labor negotiations or disciplinary hearings. water enterprise related legal services, according to the agreement. Other “banks” may be created as are determined to be necessary or convenient by the city manager and city attorney.
Empowerment training
The retainer agreement also includes training for the city manager and department heads regarding:
1. What services fall within the retainer, which are Special Services and how the hour “banks” function;
2. Topics to assist staff on how to avoid common problems for which the City Attorney’s office has been utilized for assistance (e.g. how to handle a Pitchess motion, contract preparation, handling ADA interactive processes, conducting disciplinary matters, issuing enforceable code citations, etc.).
The concept, per the agreement, is to allow staff to perform more of their functions, address or resolve certain legal issues and better determine whether legal assistance is truly necessary.

Additional charges
Some things are not included in the contract and are billed as needed:
• In-office photocopying: 20 cents per page
• In-office color photocopying: $1 per page
• Facsimile charges: $1 per page
• Mileage: $ .535 per mile (per IRS notices) Other: at cost
• Out-of-town travel: The city of Hemet will pay transportation, meals, lodging and all other costs of any necessary out-of-town travel by Burke. Burke will also charge an hourly rate for out-of-town travel.
• Experts, consultants and investigators will be provided at the city’s approval.

Billing intervals
The city is on a net-30 payment system, according to the agreement; however, the city may request a statement at intervals of less than 30 days, which must be provided within 10 days of the request. The statements shall include the amount, rate, basis of calculation or other method of determination of the fees and costs, which will be clearly identified by item and amount.

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